A reader asks:
"I have a question about your recent NRO article, "Guns
in Court." You state that the Second Amendment only protects
the right of individuals to own weapons that can be used in a
militia. Does the law specify which weapons can be used in a
militia? Can a militia use assault rifles or hand grenades? May
individual citizens own every type of weapon currently in use by
the National Guard?"

Here's the
answer:

The
dominant line of nineteenth-century interpretation protected
ownership only of weapons suitable for "civilized warfare." This
standard was adopted by the U.S. Supreme Court in the 1939 United States
v. Miller case. There, the Court allowed
defendants who never claimed to be part of any militia (they were
bootleggers) to raise a Second Amendment claim. But the Supreme
Court rejected the trial court's determination that a federal law
requiring the registration and taxation of sawed-off shotguns was
facially invalid as a violation of the Second Amendment. Rather,
said the Miller Court, a weapon is only covered by the
Second Amendment if it might contribute to the efficiency of a
well-regulated militia. And the Court could not take judicial
notice of militia uses for sawed-off shotguns. The case was
remanded for trial (at which the defendants could have offered
evidence that sawed-off shotguns have utility in a militia
context), but the trial was never held, since the defendants
disappeared during the pendency of the government's appeal of the
dismissal of their indictment.

A minority
line of nineteenth-century arms-rights analysis — adopted in the
twentieth century, for example, by the Oregon Supreme Court — goes
further. This analysis protects not just militia-type weapons, but
also weapons which are useful for personal defense, even if not
useful in a military context. Thus, the Oregon state
constitution's right to arms was held to protect possession of
billy clubs and switchblades — weapons which were pointedly
excluded from protection by the civilized warfare cases.
State
v. Delgado, 298 Or. 395, 692 P.2d 610
(1984)(switchblades);
State
v. Blocker, 291 Or. 255 (1981) (billy clubs).

With the
civilized-warfare test as the constitutional minimum, efforts to
ban machine guns or ordinary guns that look like machine guns
(so-called "assault weapons") appear constitutionally dubious.
These rifles are selected for prohibition because gun-control
lobbies claim that the rifles are "weapons of war." This claim, if
true, amounts to an admission that the rifles lie at the core of
the Second Amendment.

Today, once
people understand that "assault weapons" are firearms that are
cosmetically threatening but functionally indistinguishable from
other long guns, they are willing to accord these arms a place
within the right to keep and bear arms. Machine guns, in contrast,
really are functionally different. Machine guns are rarely used in
crime; and lawfully possessed machine guns, which must be
registered with the federal government, are essentially absent
from the world of gun crime. Nevertheless, even many people who
consider themselves strong Second Amendment supporters cannot bear
the thought of a constitutional right to own machine guns.

But the
Halbrook test sidesteps the fact that militia uses, not just
personal-defense uses, are part of the core of the Second
Amendment. Moreover, the Halbrook test could allow governments to
ban new types of guns or weapons, since those weapons, being new,
"have never been commonly possessed for self-defense." The test
could allow Second Amendment technology to be frozen, as if the
government claimed that new communications devices are unprotected
by the First Amendment because they have never (heretofore) been
commonly used for speech.

Just as the
civilized-warfare test protects firearms that many persons want
excluded from the Second Amendment, the test also excludes
firearms that many persons want to be included. The
civilized-warfare cases protected large handguns, but in some
applications excluded small, highly concealable handguns. This
would suggest that modern bans on small, inexpensive handguns
might not violate the Second Amendment. On the other hand, small
handguns such as the Colt .25 pistol were used by the United
States military during the Second World War. (See Charles W. Pate,
"Researching the Martial .25 Colt Pistol," Man at Arms, Jan./Feb.
1995, 20-29.) (Of course, anyone using the civilized-warfare test
to make such an argument must also accept the flip side of the
civilized-warfare coin: "Assault weapon" prohibition is plainly
unconstitutional.)

The
nineteenth-century minority theory, however, would recognize
small, relatively inexpensive handguns as highly suitable for
personal defense, and accord them Second Amendment protection
regardless of their militia utility. Twentieth-century
constitutional law reflects a special concern for problems of
minorities and the poor that was not present in nineteenth-century
law. Since a small handgun may be the only effective means of
protection that is affordable to a poor person, and since the poor
and minorities tend to receive inferior police protection, modern
equal-protection analysis might find some problems with banning
inexpensive guns, even if one sets aside the Second Amendment.
(Note, Markus T. Funk,
The Melting Point Case-in-Point, 85 J. CRIM. L. &
CRIMINOL. 764 (1995).)

But under
the main nineteenth-century line of cases, opponents of banning
small handguns must overcome the presumption in those cases that
small handguns are not suitable militia weapons; perhaps the
frequent and successful use of small handguns in twentieth-century
partisan warfare against the Nazis and other oppressive regimes
offers one potential line of argument.

Twenty-first century jurisprudence might update the
civilized-warfare test by changing the focus from the military to
the police. The modern American police, especially at the federal
level, resemble in many regards the standing army that so
concerned the founders. While the American army is geared toward
overseas warfare, the police are oriented toward the type of
internal-order functions (e.g., suppression of riots), which were
among traditional militia duties. Accordingly, the twenty-first
century question, "What are suitable militia-type arms?" might be
answered, "Arms that are typical of, or suitable for, police
duty." By the modernized test, high-quality handguns (both
revolvers and semiautomatics) would lie at the core. Smaller, less
expensive handguns (frequently carried by police officers as
back-up weapons, often in ankle holsters) would also pass the test
easily. Ordinary shotguns and rifles (often carried in patrol
cars) would also be protected. Machine guns and other weapons of
war are not currently ordinary police equipment, although they are
becoming common in special attack units.

Finally, we
need to remember Noah Webster's American Dictionary of the
English Language, originally published in 1828. That
dictionary, which is closer to the origin of the Second Amendment
than any other American dictionary, defines "arms" as follows:

"Weapons of
offense, or armor for defense and protection of the body ... A stand of
arms consists of a musket, bayonet, cartridge-box and
belt, with a sword. But for common soldiers a sword is not
necessary."

Webster's
definition offers two useful insights. First, the distinction
sometimes drawn between "offensive" and "defensive" weapons is of
little value. All weapons are made for offense, although they may
used for defensive purposes (i.e. shooting someone who is
attempting to perpetrate a murder), since the best defense
sometimes really is a good offense.

Second,
Webster reminds us that "arms" are not just weapons. "Arms" also
include defensive armor. This suggests very serious constitutional
problems with proposals to outlaw possession of bullet-resistant
body armor by persons outside the government.

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